If hard cases make bad law, perhaps it follows that unusual cases produce bizarre results. Proof of that can be seen in a recent ruling of an 11�judge en banc panel of the 9th U.S. Circuit Court of Appeals involving Yahoo’s battle against French groups that oppose the sale of Nazi memorabilia.

Statistics show that the party that lost in the trial court faces an uphill battle on appeal, because most appeals result in affirmance of the judgment or order under review. And you might think that the likelihood of affirmance would become a certainty once each argument for overturning the trial court’s decision is rejected. But, as the 9th Circuit’s en banc ruling earlier this month in Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme demonstrates, you’d be wrong.

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